BENNETT v. Police Athletic League, Inc., Appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Candice BENNETT, etc., et al., Respondents, v. CITY OF NEW YORK, et al., Defendants, Police Athletic League, Inc., Appellant.

Decided: March 24, 2003

A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, ROBERT W. SCHMIDT and WILLIAM F. MASTRO, JJ. Feder, Goldstein, Tanenbaum, D'Errico & Arnedos, LLP, Carle Place, N.Y. (Morton H. Feder, Ted Tanenbaum, and Steven I. Brizel of counsel), for appellant. Schneider, Kleinick, Weitz, Damashek & Shoot (Diane Welch Bando, Irvington, N.Y., of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Police Athletic League, Inc., appeals from a judgment of the Supreme Court, Queens County (Dollard, J.), entered August 21, 2001, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $250,000.

ORDERED that the judgment is reversed, on the facts, and a new trial is granted on the issue of liability only, with costs to abide the event;  the jury's findings as to damages are affirmed.

 While participating in a track and field program sponsored by the appellant Police Athletic League, Inc. (hereinafter the PAL), the then 13-year-old infant plaintiff sustained an injury when she slipped on the ground-level horizontal support bar of a hurdle over which she was attempting to jump.   The jury, finding that the PAL was negligent, and also finding that its negligence contributed to the infant plaintiff's accident, awarded the plaintiffs damages in the principal sum of $250,000.   The jury also found that the infant plaintiff was herself negligent, but that such negligence was not a proximate cause of the accident.

 We agree with the PAL's argument that the jury verdict finding that the infant plaintiff was herself negligent, but that her negligence did not contribute to the accident, is against the weight of the evidence.   In this case, “the issues of [comparative] negligence and proximate cause are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Kovit v. Estate of Hallums, 261 A.D.2d 442, 443, 690 N.Y.S.2d 82;  see Hernandez v. Baron, 248 A.D.2d 440, 668 N.Y.S.2d 940;  Pimpinella v. McSwegan, 213 A.D.2d 232, 623 N.Y.S.2d 863;  Schaefer v. Guddemi, 182 A.D.2d 808, 582 N.Y.S.2d 803;  Petioni v. Grisi, 155 A.D.2d 366, 547 N.Y.S.2d 641;  see also Bendersky v. M & O Enters., Corp., 299 A.D.2d 434, 751 N.Y.S.2d 269;  Johnson v. Schrader, 299 A.D.2d 815, 749 N.Y.S.2d 191;  Calderon v. Irani, 296 A.D.2d 778, 745 N.Y.S.2d 610).   The proper remedy is to set the verdict aside and direct a new trial on the issue of liability (see Bendersky v. M & O Enters. Corp., supra;  Johnson v. Schrader, supra;  Kovit v. Estate of Hallums, supra ).

 In light of all of the circumstances of this case, including the infant plaintiff's age, her level of experience, and the PAL's alleged failure to furnish her with adequate instructions, we do not agree with the PAL's argument that the doctrine of assumption of the risk presents a complete bar to recovery (see generally Trainer v. Camp Hadar Hatorah, 297 A.D.2d 731, 748 N.Y.S.2d 386;  Taylor v. Massapequa Intl. Little League, 261 A.D.2d 396, 689 N.Y.S.2d 523;  Petretti v. Jefferson Val. Racquet Club, 246 A.D.2d 583, 668 N.Y.S.2d 221;  cf.  Auwarter v. Malverne Union Free School Dist., 274 A.D.2d 528, 715 N.Y.S.2d 852).

The appellant's remaining contentions are without merit.

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